US businesses that use plant-based products, to create paper, lumber, furniture and even certain types of cosmetics, perfumes, and plant-based pharmaceuticals, have reason to be concerned. Even though early this fall, the US Department of Agriculture (USDA) announced that it once again would delay enforcement of the new Lacey Act import declaration requirements for paper and wood pulp products, other far-reaching provisions in the Lacey Act’s amendments (including the declaration requirement itself) are already in effect. Those provisions may end up revolutionizing how American businesses buy and use plant-based products.
Congress first enacted the Lacey Act in 1900—the first ever federal wildlife protection statute—to protect native bird species. The Act was amended a few times over the ensuing decades and, in recent years, served mainly to outlaw the importation, acquisition, or purchase of wildlife taken in violation of another jurisdiction’s laws—be that another state, federal land, or a foreign nation. For example, in a recent case, the National Oceanic and Atmospheric Administration and Immigration and Customs Enforcement relied on the Lacey Act to arrest and prosecute a group of individuals engaged in importing into the United States massive quantities of illegally poached South African rock lobster, crimes which made the perpetrators millions of dollars. (Full disclosure: one of the authors of this post, Marcus Asner, led this prosecution, United States v. Bengis et al., while serving as an AUSA in the SDNY) .
Possibly the most significant recent changes to the Lacey Act came in 2008. In response to increasing concerns about illegal logging around the world, Congress considerably expanded the Lacey Act so that it now covers plants and parts of plants — including plant products — taken in violation of foreign law. To be precise, as of May 22, 2008, it now is unlawful to acquire, possess, import, export, sell, transport or purchase any plant products if the plants were taken or exported in violation of a state, federal or foreign law or international agreement.
The changes are far reaching. The Act now covers paper, cardboard, furniture, tools, appliances—indeed, anything made in whole or in part from wood. It may even cover perfumes, cosmetics or pharmaceuticals if those products contain ingredients made from illegally harvested plants or trees. While there are some exceptions, such as for “common cultivars” or crops — which are not yet fully defined — trees and their products are specifically included under the Act’s coverage.
The Lacey Act packs a significant bite. A defendant who imports paper from illegally logged forests and knows of its illegal nature could face prison time and significant fines. A company that fails to exercise “due care” to make sure it is buying “legal” paper could be found guilty of a misdemeanor or could face civil fines of up to $10,000 for each violation. Even innocent purchasers of illegal wood products face a risk. The government can confiscate the unlawfully obtained paper even if the possessor had no knowledge of its illegality and had exercised due care.
Now, what about those declarations we talked about earlier? Each importer of plant products is currently required to fill out and submit a form declaring the products’ country of origin, species, quantity and value, as well as the percentage of any recycled content in paper products. The USDA has twice postponed enforcing these requirements for paper and paper products, and as of now, the earliest the government will enforce the declaration requirement for paper is September 1, 2010. Once the government starts enforcing the declaration requirement, customs clearance may be denied for any imported paper products that are not accompanied by an appropriate declaration
But, this delay only calls for a small sigh of relief. The far-reaching consequences of the new Lacey Act, particularly its requirement that companies import or buy only legal plant products, are already in effect. And that means that companies are busy (or should be busy) making sure they have state-of-the-art compliance programs to help them check out their suppliers to get comfort that the plant products they buy don’t run afoul of the Lacey Act.
UPDATE: Click here for a more extensive write-up on this issue.
- Marcus Asner and Grace Pickering
